Publication Details

Abstract

Queensland has been the last Australian jurisdiction to reform its law of criminal defences to try and take account of the difficulties faced by victims of domestic abuse in satisfying the traditional elements of self defence. Section 304B of the Queensland Criminal Code was designed to create a partial defence for victims of domestic violence who, fearing for their lives, kill their abusers in circumstances that would otherwise constitute murder. Usually, these cases involve killing in the absence of a triggering assault or where the feared harm is not imminent. The partial defence provides that the accused will be found guilty of manslaughter only, thereby allowing for judicial discretion in sentencing. This paper argues that the new provision is ineffective and, in fact, puts victims of abuse who kill in a more difficult tactical position than if it had not been enacted. The theory of criminal responsibility (juxtaposing justification and excuse) and various moral theories are used to argue that victims of serious abuse who kill their abuser should be entitled to an acquittal, even without a triggering assault and even if the threat posed by the abuser is not immediate.